The Role of the Monarchy in Canada in 2021

PUBLISHED: MARCH 15, 2021 | by the Constitutional Rights Centre

Over the last week, in response to the interview of Prince Harry and Meghan, the Duchess of Sussex, there has been discussion in the press (CBC (the Current) and Global News) about the difficulties that Canada might face if there were to be an attempt to cut ties with the Monarchy. This debate misses an important point. There are no longer any ties to the Monarchy.

Canada no longer is a Monarchy. Since Patriation, it is a Republic based on a Constitutional Monarchy system. There is no need to cut ties with the Monarchy as Patriation in the Canada Act (UK) and the Constitution Act, 1982 have already cut those ties.

The Patriation of the Canadian Constitution 1982 precludes any action by the UK in Canadian legal affairs. While the Queen could have taken the position that she still was the head of state, not as the Queen of England, but as the Queen of Canada, this option was foreclosed by the decision of the Queen, shortly after the Patriation, to refuse a petition from First Nations bands, under the treaties signed with the Crown, on the basis that she no longer had ANY authority in respect of Canada.

As a matter of practice, for decades, the Governor General (“GG”) has been the effective head of state of Canada. The Queen has not acted in respect of Canada through the GG for decades.

The CRC argued in the Supreme Court Act Reference (Nadon Reference) that the Patriation and the amending formula of the Constitution Act, 1982 precluded Parliament from changing parts of the Supreme Court Act, previously an ordinary statute, that purported to change the composition of the Supreme Court of Canada. The SCC agreed and ruled that the constitutional amending formula precluded changing the composition of the SCC without constitutional amendment. This constitutionalized the composition of the SCC, precluding unilateral changes by Parliament.

The same logic applies to the GG. As the CRC argued in the Citizenship Act case in the FCC (Bill C-24), although the Court did not address this issue, the GG’s role and powers are also protected by the Constitution Act, 1982 amending formula. Parliament, the UK and the Queen cannot change the role or powers of the GG without constitutional amendment. The powers of the GG are set out in Letters Patent issued by the Monarchy in the UK. The last one prior to Patriation was in 1947. The CRC asserts that the precedent and logic of the Supreme Court Act Reference makes it clear that the Patriation and amending formula of the Constitution Act, 1982 have constitutionalized the role and powers of the GG as set out in the Letters Patent, 1947.

The GG is no longer subject to directions from or control by the Monarchy since the Monarchy no longer has any legal authority in Canada. The GG, who was, in effect, the head of state, is now legally the head of state.

The ties of Monarchy that bound need not be cut. The ties have already been cut by the UK in the Patriation of the Constitution achieved by the UK Parliament passing and the Queen signing into law, the Canada Act. Many do not realize the implications of Patriation. We are free from the Monarchy. Long live the Republic of Canada!

Thank you for your continued and kind support of the CRC

Paul Slansky, Operational Director (Criminal and Quasi-Criminal)